I.

OVERVIEW
Types of Defenses:
1. Failure of proof: negate or refute an essential element of the crime (beyond a reasonable
doubt)
a. In Re Winship
i. Due Process Clause protects the accused against conviction except upon
proof BRD of every fact necessary to constitute the crime of which he is
charged
ii. “Far worse to convict an innocent man than to let a guilty man go free”
iii. 80% certainty does not satisfy BRD
2. “True” Affirmative Defenses or Exculpation Defenses:
a. Justification - defendant’s actions were morally correct
b. Excuse - defendant is not blameworthy or morally responsible because external or
internal forces were such that no one could reasonably be expected to act
otherwise than how defendant did
c. Dixon v. Us- under federal law, a defendant raising the affirmative defense of
duress must prove that defense by a preponderance of the evidence
i. Since Duress does not negate MR it is an affirmative defense

Burden of Production vs. Burden of Persuasion

1. Burden of production - coming forward with enough evidence to put a fact at issue
a. Usually for prosecution but can be defense for affirmative defense
2. Burden of persuasion - burden of convincing the trier of fact beyond a reasonable doubt
a. For most facts relevant to guilt, prosecution bears both burdens (sometimes one,
sometimes none - depends on state laws)

Evidence
● Any fact that increases the max penalty to an offense is an “element” which must be
proved beyond a reasonable doubt
○ Apprendi v. New Jersey: states do not have the unlimited discretion to
characterize facts as mere sentencing considerations rather than elements
○ Alleyne v. US: mandatory minimum sentence cannot be founded on
preponderance of the evidence
● Irrelevant evidence is never admissible (rule 402)- relevant evidence is generally
admissible but must be:
○ Probative : must tend to make a fact more or less likely to be true than without it
(rule 401)
■ Evidence must be excluded whether its probative value is outweighed by
its prejudicial effect
○ Material : affects the outcome of the case
● Even if evidence is relevant, it is sometimes protected by a privilege

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 ○ Examples: attorney-client privilege, protection against self-incrimination (Fifth
Amendment)
● Permissive Inference
○ “A person of sound mind and discretion is presumed to intend the natural and
probable consequences of his acts”
○ Circumstantial evidence- evidence does not directly prove a certain proposition
but rather another fact which you can make an inference about a related fact
○ Permissive inferences can be used if the relationship is more likely than not to
hold true under the circumstances of the particular case
● Reasonable doubt “as a matter of law”
○ Curley v. US: a trial judge must grant a motion for a directed verdict of acquittal
in a criminal case if there is no evidence upon which the jury could reasonably
find guilt BRD

II. PHILOSOPHY/POLICY

Why Punish- Justifications

● Retributionist - punishment justified by seriousness of the crime committed, not future
benefits to be obtained by punishing
○ How despicable the conduct
○ Positive retributivism: a society may and must punish the blameworthy because
they deserve punishment
○ Negative retributivism: moral guilt is necessary but not automatically a sufficient
condition of just punishment
■ Sets the upper level of permissible punishment
■ Focuses on moral culpability/how bad was the conduct?
○ Cousins of retributivist- retaliation and vengeance, social cohesion
● Utilitarianism - maximize societal happiness
● “Classic Mixed Theory”
○ The purpose of punishment is utilitarian, but is pursued within retributive limits
○ “A person can be punished only if he committed a crime, only in proportion to
that crime, and only if doing so would produce a world with less crime”

Complexities of Crime Control

1. Deterrence - offender must know of rule and consequences, cost of violation greater than
benefit, able and willing to consider both when making the decisions
a. Specific deterrence - deter that person from committing more crime
b. General deterrence - deter general public/others from committing crime by seeing
someone else be punished
c. For deterrence to work, need person to be:
i. Aware of the consequences/the rules

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 ii. Fear the consequence
iii. Evaluate cost/benefit
iv. Change behavior accordingly
2. Rehabilitation - through punishment, keep people out of the justice system
a. Education, mental health, alcohol and drug recovery
b. Relies on idea that people are not inherently bad, society/institutions are to blame
for crime
i. Wants to attack underlying reasons for incarceration
c. Wants to protect everyone by returning criminals as “safe people”
3. Incapacitation - restrain those under control to incapacitate
a. Selective incapacitation: longer sentences for those more likely to commit more
crime in the future; predicts those likely to commit another crime and how long
they are likely to commit another crime
b. Issue: longer you’re in prison, higher the rates of recidivism
4. Commonwealth v. Ritter (1930) - life imprisonment instead of death, case was frenzied
jealousy not deliberate
a. Purposes for Punishment:
i. To bring about the reformation of the evil-doer
ii. To affect retribution or revenge upon him
iii. To restrain physically
iv. To deter others from similarly violating the law
5. United States v. Jackson (1987)
a. Defendant sentenced for life for multiple bank robberies
b. Statute required minimum but no max- selection of sentence free of appellate
review
c. Career criminal, specific deterrence has failed to incapacitation is best remedy
6. United States v. Bernard Madoff (2009)
a. 150-year sentence for the symbolism:
i. Retribution: want to punish in proportion to massive wrongs
ii. Deterrence: want to send strongest message possible so that others do not
commit crimes like this
iii. Important for the victims; a personal, “evil” betrayal
Defining Criminal Conduct - Elements of Just Punishment
1. Legality
a. Must give individuals/society a fair warning of conduct that leads to prosecution
b. Must control discretion of police and prosecutors
c. Bars ex post facto/ retroactivity and vagueness
d. Most states have abolished common-law doctrine that you can create new crimes;
should be left to the legislatures
2. Culpability - safeguard conduct that is without fault from condemnation as criminal
Proportionality- minor vs serious offense

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III. STATUTORY INTERPRETATION
1. Precise meaning of TEXT on their face
a. common , ordinary, dictionary meaning?
b. Words of art having special meaning- what meanings do words reasonably bear
2. Context- historical background, surrounding statutes
a. Rest of the provision
b. Related statutes, other statutes that use same words
c. Historical context- law that existed when the statute was enacted
3. Legislative intent/ PURPOSE
a. Specific purpose of the particular words, clause, provision in issue
b. General purpose of the statute as a whole
c. Derived from text (textualism), legislative history, any other indicia of purpose
(traditional view)
4. Other
a. Canons on construction - assumptions made by courts about or aids to determe
purpose or intended meaning
b. Precedents
i. Direct precedent- cases directly interpreting the precise words in issue
ii. Cases interpreting other similar provisions of the same or a similar statute
iii. Cases discussing, explaining, or otherwise shedding light on specific or
general

Statutory Interpretation Cases

1. McBoyle v. United States
a. Does a “Motor Vehicle Theft Act” apply to aircraft; stolen airplane case
b. To determine meaning of “self-propelled vehicle:”
i. Common use of the words/use in everyday life
ii. Context- theme of word surrounding
iii. Legislative intent- planes not mentioned in congressional hearings
2. Yates v. United States
a. Disposing of fish below minimum is not considered “any record, document, or
tangible object”
b. Common meaning- is a tangible object
c. Context- statute as a whole- some words have different meanings given context
d. Canon- general words follow specific words, ambiguity of statute goes towards
lenity
3. Keeler v. Superior Court (1970)
a. “Unlawful killing of a human being” does not apply to fetus
b. Legislative intent- people born alive
c. Ex post facto/ retroactive rule - due process violation

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 d. Although science/progress now favors treating fetuses as human beings, cannot
change the meaning and charge the defendant
i. Would violate due process; defendants entitled to fair warning, no
retroactive laws
ii. Legislative branch has the power to define crimes

IV. ACTUS REAS

● General AR: implicit in all crimes
● Specific AR: within a specific statute
● Two types:
○ Positive Acts. Must be:
■ 1) An act (bodily movement) and (see MPC 1.13(2))
■ 2) Conscious/voluntary (intent to do the act; mental disposition with effort
or determination)
● Voluntary act: bodily movement that otherwise is a product of the
effort or determination of the act, either conscious or habitual
○ Omissions/Failures to Act- general rule is not basis for criminal responsibility
(See MPC 2.01)
AR: Positive Acts
● People v. Decina (1956)
○ Even though seizure was “involuntary act,” the act of getting in a car and driving
with knowledge that a seizure might occur satisfies AR of “reckless or culpable
negligence”
● Martin v. State (1944)
○ Drunk defendant was carried to highway then arrested for public drunkenness
○ To establish AR, must show a voluntary act- involuntarily being carried does not
constitute AR
● People v. Newton (1970)
○ Man pulled over, he gets shot and killed and so does police officer; issue of who
shot who first, and whether defendant was conscious
○ To satisfy a criminal act, the person must be conscious
■ That person doesn’t deserve punishment
■ Cannot deter actions that people do not mean to do
○ Unconsciousness is a complete criminal defense
○ Burden on prosecution and persuasion on prosecution to prove act was voluntary
AR: Omissions
● For an omission to be treated as culpable conduct or AR- defendant must have a 1) legal
duty to act under the circumstances which they failed or omitted to perform
○ 2) Or a specific statute must explicitly make the particular omission criminal
○
○ Like a positive act, an omission must be conscious and voluntary to satisfy

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 ● Jones v. United States (1962)
○ Defendant charged with involuntary manslaughter of infant due to failure to take
care of the infant; when does a legal duty lead to criminal liability?
○ Four situations in which a legal duty can be found and therefore can be used to
hold someone criminally liable for an omission
■ Statute imposes a duty
■ Relationship status
■ Contractual duty to care for another
■ Where one has voluntarily assumed care of another and secluded that
person as to prevent others from rendering aid
V. MENS REA
● State of mind or mental element of crime
● Regina v. Cunningham (1957): default method at common law when a crime definition
includes a vague or ambiguous mental state element
○ Rips off gas line
○ Under statute, MR is Malicious. Either:
■ 1) actual intent to do the particular harm done, or
■ 2) must foresee that harm may occur and choose to continue recklessly
■ Malicious is not general wickedness
○ Regina v. Faulkner (1877)
■ Cannot be criminally charged for unintentional consequences of another
felony; must prove MR as to the specific act that caused the harm
■ “Generally, a subjective state of mind (at least an awareness or foresight
of a risk of harmful consequences) is the presumptive minimum MR
requirement for criminal sanctions.”
○ Elonis v. United States (2015) - state statute silent on MR element, does not mean
there is none
■ Defendant must have some awareness of wrongdoing, must be
blameworthy/wanted to do harm/culpability
■ Do not use objective/reasonable person standard (negligence), instead, use
a subjective standard in which defendant’s thoughts were relevant
● State v. Hazelwood (1997): negligence as MR written into a criminal statute - one side of
negligence interpretation (other is Santillanes)
○ Criminal negligence requires a greater risk than civil negligence; only met when
risk is of such a nature and degree that failure to perceive it constitutes a gross
deviation from the standard of care that a reasonable person would observe
(deserving of punishment)
○ A civil negligence instruction is sufficient in this case to protect the defendant’s
interests, instead of criminal - used for deterrence
● Santillanes v. New Mexico (1993)- man convicted of child abuse under statute
“negligently causing a child to be placed in a situation that may endanger life”

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 ○ When moral condemnation attaches to the conviction, elements should reflect
increased culpability of MR of criminal negligence, not civil
● Proving awareness and intent using presumptions:
○ Must prove internal intent beyond a reasonable doubt through inferences and
circumstantial evidence
■ A person is presumed to intend the natural and probable consequences of
his acts
○ Mandatory presumptions: in the absence of contrary evidence, juries may be
forced to draw these conclusions
○ Permissive inferences: jury is told they are permitted but not required to draw
● How to prove the mental state element stated in Cunningham & Elonis?
○ To look in someone’s head- look at circumstantial evidence
○ Elonis- making permissive inferences, jury could tell he knew he was making
threats
○ Cunnigham- had used gas meter often, can infer he did know
● Traditional Mens Rea Terms
○ Specific Intent- MPC Purposefully, actor’s objective to bring about a result
○ General Intent- MPC Knowingly
● Model Penal Code MR:
○ Purposely:
■ If the element involves the nature of his conduct or a result thereof, it is
his conscious object to engage in conduct of that nature or to cause such a
result; and
■ If the element involves the attendant circumstances, he is aware of the
existence of such circumstances or he believes or hopes they exist
○ Knowingly
■ If the element involves the nature of his conduct or the attendant
circumstances, he is aware that his conduct is of that nature or that such
circumstances exist; and
■ If the element involves a result of his conduct, he is aware that it is
practically certain that his conduct will cause such a result
■ United States v. Jewell: wilful blindness, drove over the border with weed,
claimed he did not know there was weed
● Can establish knowledge by proving BRD that if there was not
actual knowledge, ignorance under the circumstances is solely and
entirely a result of having made a conscious effort/choice to
disregard the nature of the situation/avoid learning the truth
○ Recklessly: when one consciously disregards a substantial and unjustifiable risk
that the material element exists or will result from his conduct
■ Risk must be of such a nature and degree that (considering nature of
purpose of actor’s conduct and circumstances known to him) its disregard

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 is a gross deviation from standard of conduct that a law abiding person
would observe
■ Minimum MR when no MR stated
■ People v. Hall (2000) - charged with reckless manslaughter after skiing
too fast and hitting another skier
● 1) Substantial risk: likelihood of risk and magnitude of harm
● 2) Unjustifiable risk (of death): lack of necessity, nature of risk,
purpose of risk, B < PxL
● 3) Gross deviation from standard of care of reasonable…
○ Both subjective and objective considerations for this:
○ Court consulted with trained skiier for determining if this
represented a gross deviation
● 4) Consciously disregard: take into consideration circumstances
and experience of defendant
● Negligently: when one should be aware of a substantial and unjustifiable risk that
the material element exists or will result from his conduct
■ Gross deviation from standard of care, taking into consideration
circumstances known to him
○ MPC 2.02(4)- Prescribed Culpability Requirement Applies to All Material
Elements- when the law defining a offense prescribes the kind of culpability that
is sufficient for the commission of an offense, without distinguishing among the
material elements thereof, such provision shall apply to all the material elements
of the offense, unless a contrary purpose plainly appears
○ Compare all subjective MPC terms (J Shell’s short definitions)
■ Purposefully- conscious objective to cause
■ Knowingly- knows with a certain degree
■ Recklessly - not as certain

VI. MISTAKE OF FACT

1. Moral Wrong Rule
a. Regina v. Prince
i. Mistake of fact not a defense; uses social norms to determine if the act was
simply wrong in itself/obvious to everyone (sex with underage person)
ii. Strict Liability (unmarried 16-year old)
1. Legislative intent: if legislature wanted there to be an MR, they
would have included one in statute
b. People v. Olsen
i. Public policy to protect children “of tender years;” legislature intent is to
protect these victims using strict liability. “Super deterrence”
1. Different levels of punishment (under 18 vs. under 14)

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 ii. Statute contains provision stating “reasonable honest mistake as to age”
can make defendant eligible for probation, showing that legislature
intended for it not to be defense to the charge itself
2. Lesser Legal Wrong Rule
a. Regina v. Prince (dissent)
i. If what the defendant reasonably believed to be true was true, then no
crime would have been committed
ii. *If what the defendant believed to be true would have made him guilty of
a lesser crime, he is still guilty of the greater crime
1. Does not need MR for the greater crime; strict liability
b. People v. Olsen (from Lopez)
i. Mistake of fact relating only to the gravity of an offense will not shield a
deliberate offender from the full consequences of the wrong actually
committed
c. All about Mens rea- when mens rea is adequate for lesser crime but does the more
extreme crime, it is satisfied
d. Felony murder- mental state for the lesser crime, the felony, commission of a
felony then becomes the mens rea for the murder
e. Two things- often the non-mental categories do not matter
i. Also matters under MPC purposefully and knowingly are a little differente
if circumstance or conduct
ii. He likes to look at it:
1. Result is result - some harm being caused, death, serious bodily
injury
2. Conduct- action- taking, possessing
3. Attendant circumstances are everything else- property of another,
age, just not result and conduct
3. General vs. Specific Intent Approach
a. B (A Minor) v. Director of Public Prosecutions (2000)
i. B (15 yrs old) asked 13 year old for oral sex believing she was over 14
1. Statute silent as to MR
ii. Need intent as MR to this crime generally, and also MR as to specific
element of age
1. Need either “absence of a genuine belief by the accused that the
victim was 14 or over” or “knowing that the child is under 14”
iii. Mistake of fact as to age a defense as long as it is a genuine and honest
mistake, does not need to be reasonable (subjective standard as opposed to
higher objective standard)
1. Preferable over “reasonable person standard” because then the
defendant’s fault lies exclusively in “falling short” of objective

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 standard which is just a negligence standard; cannot presume
negligence as MR
4. MPC Approach
a. “Ignorance or mistake as to a matter of fact (or law) is a defense if the mistake
negates the purpose, knowledge, belief, recklessness, or negligence (the
culpability/MR) required to establish a material element of the offense,” or
b. “If it establishes a state of mind that constitutes a defense under the law relating to
defenses”

VII. STRICT LIABILITY

● Part of MR; defendant guilty even when he neither knew nor had any reason to know that
anything about his behavior was legally or morally wrong
● All are common law
● Typically public welfare offense: regardless of intent, result is the same
○ Usually omission of duty/ neglect to act, minimal punishment, aim to deter
● Defenses to S.L.
○ State v. Baker (1977)
■ Speeding while in cruise control
■ Evidence of an unpreventable, involuntary act, resulting in an unforeseen
occurrence or circumstance may constitute a valid defense to S.L.
● But, not the case here because defendant voluntarily/chose to put
car in cruise control
○ Regina v. City of Sault Ste. Marie (1978)
■ Creates a “middle ground” between true S.L. and regular MR requirement;
allows defendant to avoid liability by proving that he took all reasonable
care (usually for public welfare offenses as opposed to true criminal
activity)
● Why Implement S.L.?
○ Morissette v. United States (1952)
■ “Threshold factor” (for when there is no MR in the statute)
● For traditional crimes, assume MR needed (serious penalties)
● For public welfare offenses, assume S.L. (only small fines
imposed, aims to protect the “helpless public”)
○ United States v. Balint (1922)- defendant argued they did not know the drugs
were prohibited
■ Legislative intent is a regulatory measure or police power to achieve some
social betterment rather than punishment to the individual
■ Legislature creates some statutes with intent of no defense of good faith
mistake; has the power to enact laws for purpose of public policy
○ United States v. Dotterweich (1943)- mislabeled drugs, even though drug
company did not mislabel, liability upheld in strict liability

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 ■ Purpose of the violated statute is to protect the lives and health of people,
who in modern industrialism, have no power to protect themselves
● Rules of Interpretation
○ Staples v. United States (1994)- change to a gun led to liability under statute of
machine gun
■ Court holds the statute does require MR (person knowing they possess a
firearm) based on legislative intent; long tradition of Americans lawfully
owning guns, Congress does not want to interfere
■ Difference between firearms/grenades and “guns” (rifles)
■ Court does not want to interpret statute for strict liability when the
defendant likely was not put on notice of its illegality
● Absent a clear statement from Congress that there is no mens rea
requirement, federal felony statutes should not be interpreted to
eliminate the mens rea element
○ United States v. X-Citement Video (1994)- whether defendant knew that
transmitting images of minors in statute
■ Like in Morrissette and Staples, MR requirement should apply to each of
the statutory elements that criminalize otherwise innocent conduct
■ Even if grammatically it does not look like MR extends to all elements

VIII. MISTAKE OF LAW

● Traditional “general rule”: mistake or ignorance of law is no defense
○ People v. Marerro (1987) - waving a firearm around in a club; “peace officer?”
■ Mistake of law is not a defense because court does not want to encourage
“lawlessness;” want to incentivize knowing the law, does not want to
create this precedent because there could be an infinite number of mistake
of law defenses
● MPC:
○ Mistake of law as a failure of proof defense: (see page 334 note 3)
■ MPC 2.04(1)(a)- the mistake negates the MR as to a particular non-mental
element of the crime charged
● Specific mental as to non mental element
● Regina v. Smith (NY)- defendant took off floorboards in landlord’s
house
○ Negated the culpability of non-mental element- “property
of another” did intend to take but lacked intent to take
property of another
○ “Property of another” is a non-mental part of the law
○ Smith David Case- stereo wiring, intentionally or recklessly
property of another- this is also a legal element
■ What is property? Is defined by law

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 ■ If tenant puts property on it becomes landlords’ -
this is a mistake as to particular element of the law
● People v. Weiss - man assisting detective charged with kidnapping
for making an arrest
○ Mistake of law permitted defense because it negated the
intent to act “without authority of law”
○ Arguable a mistake of fact
■ OR
■ MPC 2.02(9)- if MR for the crime charged does require some awareness
of the existence, meaning, and applicability of the law defining the crime
and defendant’s mistake of law negates that required awareness
● Mental as to criminality generally
● Cheek v. United States (1991) - federal income tax evasion
○ Requirement of willfulness to violate the tax law (congress
built in given its confusion)
○ A honest mistake, regardless of reasonableness, is still a
defense
○ MR in this case = “willfully,”therefore requiring specific
intent to violate the law, meaning defendant must know the
law applies to them/that they had a duty
● I did not think law applied to me generally - ultimately not much
of a different between 4 and 9-
○ Mistake disproving Mens rea is important
○ Mistake of law as an Affirmative Defense:
■ “Reasonable reliance on official statement”- a reasonable mistake about
whether defendant’s conduct constitutes the crime charged
● Must be based on an “official statement” about the law, later
determined to be incorrect MPC 2.04(3)(b)
● Hopkins v. State (1949) - relied on the words of an official-
insufficient under 2.04(3)(b)
○ Words of a public official, even a state’s attorney, is not
“equal to the law”
■ “Lack of Adequate Notice”- MPC 2.04(3)(a) (very rare upheld defense)
● Lambert v. California (1957) - did not follow LA statute for
convicted person to register when they move to the city
○ No MR/ strict liability
○ Defendant was not afforded the opportunity to comply with
the statute upon learning of it; violates due process
○ Also relevant - the conduct was passive/failure to act
○ Also - no proof of even probability of knowledge
RAPE

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 ● Modern Rape Statutes typically interpret as a 1) crime of violence or 2) violence of
privacy or anatomy
● Common law:
○ 1) Intercourse
○ 2) With another person
○ 3) By force or threat of force
■ State v. DiPetrillo (2007) - boss and employee, initially kissed back then
resisted and was held down
● Statute requires force or coercion by physical force; Psychological
pressure and coercion is not sufficient without more physical force
○ “Modicums of physical force” not enough
■ State v. Alston (1984) (North Carolina) (Implicit Threats)
● Defendant had history of domestic violence/abuse
● Court holds that physical force requirement was not met because it
was without violence; even though non-consent was established
● Defines physical force in “school boy terms,” essentially requiring
violence/a fight- very high bar
● Court concluded that the evidence of non-consent was unequivocal
but held the evidence did not establish force
■ State v. Thompson (1990 Mont.) (non-physical threats)
● High school principal threatens to prevent victim from graduating
● Says “without consent” combined with a threat is not enough to
constitute physical force
○ Physical force is the “use or immediate threat of bodily
harm or injury”
● Cannot “stretch” the definition of force to include intimidation,
fear, or apprehension; do not want to “open floodgates”
■ Commonwealth v. Mliinarch (1988) (PA)
● Victim submitted to sexual advances based on threats to send her
back to detention home
● Pre-PA changes; need actual physical compulsion or violence or
threat of physical compulsion/violence
○ Looks at the plain meaning of rape as legislative definition
○ Would lead to too many convictions due to “intolerable
uncertainty”
■ State in the Interest of M.T.S. (1992) (NJ) - changes to invasion of bodily
autonomy/ privacy/ control rather than violence
● Sexual Assault: Any act of sexual penetration engaged in by the
defendant without the affirmative and freely given permission of
the victim to the specific act of penetration constituties sexal
assault

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 ● Physical force: when defendant applies any amount of force
against another person in the absence of what a reasonable person
would believe to be affirmative and freely given permission
● Sets forth three elements of sexual assault:
○ 1) Sexual penetration
○ 2) Another person
○ 3) Using physical force or coercion
● Indicative of movement focusing on lack of consent
○ 4) Against the will & without consent
■ State v. Rusk (1981) - victim’s keys were taken and was forced to come
inside (traditional)
● Lack of consent can be established by:
○ 1) Resistance by the victim
○ 2) Failed to Resist due to Genuine/ Reasonable Fear
■ Degree of fear necessary is very high, must be
“reasonable,” must be based in a “suggestion that
they will be harmed if they resist”
● Dissent- emphasizes the need for violence
● Consent/MR in Rape
○ Mistake of Fact Defense- only when defendant’s error as to consent is reasonable
(MR of Negligence)
○ Old rules had force and lack of consent, now many states just require lack of
consent
■ Leads to focus on intellectual and emotional force
○ Four Broad types of non-consent
■ 1) Verbal resistance plus additional behavior that makes unwillingness
clear (totality of the circumstances)
■ 2) Verbal resistance alone
■ 3) Verbal resistance or passivity, silence, or ambivalence (absence of
permission)
■ 4) Absence of verbal permission (everything other than saying “yes”)
○ Mens Rea in Rape
■ No MR state in statutes
■ Tradition and MPC - had to be subjective culpability/ foresight of
consequences
■ Commonwealth v. Sherry (1982) (Mass)
● Objective, reasonable person standard for mistake of fact for
consent
● Does not matter what defendant thought; strict liability
● Majority recognize objective/ reasonable mistake of fact
○ Mass and PA only states with strict liability

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 ■ Commonwealth v. Fischer (1998) (PA)
● Involuntary Deviant Sexual Intercourse (IDSI) statute- different
than rape because there is no physical force requirement
● Decisions must be based on law that existed at the time; mistake of
fact as a defense did not exist at the time
● As a matter of law, this crime is not a fact-specific crime;
legislature just requires force/non-consent

Homicide (Common Law/Traditional Approach)

● General:
○ No specific conduct element, MR is distinguishing
○ General AR requirement
○ Result element: death of a human being
● Murder: killing with malice or aforethought
○ Malice: name for mental states that make homicide particularly culpable.
■ 1) Specific intent to kill (same person, transferred intent, or general)
■ 2) Intent to cause serious bodily injury
■ 3) Knowing that death is substantially certain
■ 4) Recklessly indifferent to human life; “gross recklessness”

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 ■ 5) Commission of a felony
○ First Degree:
■ Types -
● 1) Murders committed by poison or lying in wait
● 2) all other Willful, Deliberate, and Premeditated killings
● 3) Certain enumerated felony murders
● All other murders not these types are Second Degree
■ 1) Willful
● Specific intent to kill (without heat of passion and provocation)
■ 2) Premeditated and Deliberated, two views:
● “PA” view
○ Commonwealth v. Carroll (1963)- man shot wife after
evening of arguing
■ There is no set length of time necessary to form the
intention to kill for first degree murder (can be
instant)
● Court ignores evidence that it was done as
an impulsive reflex; still intentionally picked
up gun and shot her
■ Premeditation may be found from a defendant’s
words or conduct or from the circumstances and
may be inferred from the intentional use of a deadly
weapon on a vital part of the body
■ Majority Rule
■ Only really need to show Willful
● “WVU” view
○ State v. Guthrie (1995) - man with psychiatric disorder
snapped at coworker teasing him and stabbed
■ There must be some period between the
formation of intent to kill and actual killing,
need opportunity for reflection on intent to kill
■ Policy: one who ponders intent to kill is more
dangerous/ culpable than one who kills on sudden
impulse
● Must distinguish between first and second
degree murder
● Types of evidence sufficient to sustain a finding of premeditation
○ 1) Facts regarding the Defendant’s behavior prior to the
killing that might indicate a design to take life (planning
activity)
○ 2) Motive

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 ○ 3) Preconceived Design
○ Second Degree Murder: all other murders, meaning killings with malice but:
■ Willful or some other form of malice
■ But no premeditation and deliberation
● Unintentional Murder
○ Possessing malice but without intent to actually kill
○ Commonwealth v. Malone (1946)
■ If an individual commits an act of gross negligence for which he must
reasonably anticipate that death to another is likely to result, he exhibits
that wickedness of disposition and cruelty which proves he possessed
malice
● “Reckless indifference to human life” as malice
● Gross Extreme negligence:
○ 1) Reckless
○ 2) Manifest extreme indifference to human life
● As risk gets closer to certainty, more likely knowingly as opposed
to recklessly
○ United States v. Fleming
■ Malice may be established by evidence of conduct which is “reckless,
wanton, and a gross deviation from a reasonable standard of care of such a
nature that a jury is warranted in inferring that defendant was aware of a
serious risk of death/serious bodily harm
● Difference between malice and gross negligence is one of degree;
look at surrounding circumstances
● Manslaughter (Common Law/Traditional)
○ Killing without malice aforethought
○ Partial element defense to murder
■ Prosecution must prove malice and disprove heat of passion, etc.
● Partial failure of proof: proving heat of passion/provocation
● Partial justification: provoked killing partially justified because of
behavior
○ Voluntary Manslaughter- MR Required:
■ 1) Intent to kill
■ 2) Heat of passion (excuse)
■ 3) Reasonable adequate provocation (justification)
● a) Girouard v. State (1991) - “abusive words” as provocation;
Rigid Approach
○ Adequate provocation: must be calculated to inflame the
passion of a reasonable person and tend to cause him to act
for the moment from passion rather than reason (inserts
objective aspect)

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 ■ Words could reach this level, but only if they are
accompanied by condu ct indicating a present
intention and ability to cause the defendant bodily
harm (household language does not reach this level)
■ Traditional circumstances: extreme assault and
battery, mutual combat, illegal arrest, injury or
serious abuse of a close relative, sudden discovery
of spouse’s adultery
○ Courts want clear, bright-line rules so juries and judges
don’t have too much discretion
● b) Maher v. People (1862) - anything that produces such a state of
mind in an ordinary man, of fair disposition, to become passioned
enough to kill them
○ No explicit, rigid categories for provocation; flexible
approach
○ Reasoning: Each person is different; so while still
“objective,” need to look at the facts of each case
○ Would a reasonable person had cooled down
■ 4) Without cooling
● Involuntary Manslaughter (Common Law/Traditional)
○ (Possible definition) Involuntary manslaughter: causing the death of another
person either:
■ as a result of the doing of an unlawful act in a reckless or grossly negligent
manner, or
■ the doing of a lawful act in a reckless or grossly negligent manner
■ Criminal Negligence- must be more than ordinary tort negligence (Mark
Rahdert)
● PA- gross negligence
○ PA Section 2504 Involuntary Manslaughter
■ A person is guilty of involuntary manslaughter when as a direct result of
the doing an unlawful act in a reckless or grossly negligent manner, or
the doing of a lawful act in a reckless or grossly negligent manner, he
causes the death of another person
○ Commonwealth v. Welansky (1944)
■ If a defendant owes a duty of care for the safety of business visitors
invited to their premises, the defendant acts wantonly or recklessly if he
intentionally fails to take appropriate care in disregard of the probable
harmful consequences to the visitors. Elements:
● High degree of likelihood
● That substantial harm will result
● Difference in degree of risk (if appropriate measures taken)

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 ● Voluntary taking of risk
■ The defendant’s actions constitute wanton or reckless conduct . . . if an
ordinary normal woman under the same circumstances would have
realized the grave danger
● Can infer the apparentness of risk from reasonable person
perspective
○ State v. Barnett (1951)
■ Generally held in the U.S. that the negligence of the accused must be
“culpable, gross, or reckless;” such a departure from what would be the
conduct of an ordinarily prudent or careful man under the same
circumstances as to be incompatible with proper regard for human life
○ State v. Williams (1971) - charged with involuntary manslaughter for negligently
failing to supply a 17 month old with needed medical attention
■ Statute specified that ordinary negligence was sufficient for involuntary
manslaughter
■ If a person commits ordinary negligence, and such negligence proximately
causes the death of another, the person is guilty of involuntary
manslaughter

MPC

● MPC Homicide § 210

○ Human Being- person born alive

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 ○ Bodily injury- physical pain, illness, impairment or physical condition
○ Serious bodily injury- bodily injury which creates a substantial risk of death
■ Proof of intent to inflict great/serious bodily injury sufficient to establish
“recklesssly under the circumstances” sufficient for murder
○ Deadly weapon- firearm or other weapon, device, instrument, material or
substance known to be capable of producing death or serious bodily injury
○ 210.1 Criminal Homicide
○ 210.2 Murder
■ Purposely or knowingly
■ Recklessly indifferent to human life
■ OR in the commission of a felony
● MPC Manslaughter (does not distinguish between voluntary and involuntary)
○ 1) Committed recklessly 2.02(2)(c) or
○ 2) Homicide which would:
■ 1) otherwise be murder
■ 2) But committed under the influence of extreme mental or emotional
disturbance
■ 3) for which there is a reasonable explanation or excuse
■ People v. Casassa (1980) - defendant dating victim, started stalking/
breaking into her house
● Extreme emotional disturbance is a defense when actions cause by
mental infirmity not rising to insanity.
● Components:
○ 1) Particular defendant must have acted under influence of
extreme emotional disturbance (subjective)
○ 2) Reasonable excuse or explanation for such disturbance
(both subjective and objective elements)
■ Defendant’s situation/internal situation and
circumstances (subjective)
■ The objective standpoint of D’s situation
● In this case- defendant was under extreme emotional disturbance
but circumstances were so peculiar it was unreasonable (satisfies
subjective requirement but not objective)
● MPC Unintended Killings - Negligent Homicide 210.4
○ 1) Criminal homicide constitutes negligent homicide when it is committed
negligently
○ 2) negligent homicide is a felony of the third degree
○ Manslaughter and NH are distinguished by whether the defendant was aware of
the unwarranted risk he was creating
Burden of Proof
○ Patterson v. New York (1977- MPC) and Leland v. Oregon (1952)

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 ■ Prosecution must prove every element beyond a reasonable doubt
■ Defendant may be required to prove an affirmative defense
■ Does not imply that a state legislature may reallocate burdens of proof by
labeling as affirmative defenses some elements of the crimes now defined
in their statutes
■ No malice- does away with manslaughter negating malice defense
○ Mullaney v. Wilbur (1975 Traditional)
■ Supreme Court held due process was violated by requiring defendant have
burden of proving provocation (element) in voluntary manslaughter
defense
■ Murder has malice in this case
■ Intent to kill without WDP is manslaughter
● Felony Murder
○ Limited to felonies in commission, in flight from felony, or in intent to commit a
felony
○ Felony must be independent from the murder in most states
○ Can extend timeline until felon has reached point of safety

Mens rea LEsser LEgal Wrong

If they had lesser legal wrong

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